378 F.

2d 401

Roy Thomas O'MALLEY, Appellant,

v.
UNITED STATES of America, Appellee.
No. 6858.

United States Court of Appeals First Circuit.

June 6, 1967.

Robert H. Reiter, Washington, D.C., with whom Robert R. Afflick, West

Warwick, R.I., was on brief, for appellant.
Alton W. Wiley, Special Asst. U.S. Atty., with whom Edward P. Gallogly,
U.S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.

Defendant, a Chief Petty Officer of the United States Navy, was indicted and
convicted for 'wilfully and knowingly convert(ing) to his own use a sum
approximately $900 of the money and property of the United States which had
come into * * * (his) possession * * * by virtue of his employment * * *.' 18
U.S.C. 641.1

The government's evidence showed that defendant was chief commissaryman

in charge of the mess facilities at the Navy Construction Battalion Center,
Davisville, Rhode Island. His duties included collecting the daily cash receipts
from the mess cashiers and transmitting them to the Disbursing Officer.
Ordinarily, naval personnel who did not have 'chow passes' would pay cash for
a meal and sign a 'signature sheet' which served as the record of cash collected.
Each cashier would turn over to the defendant the money he had received and
the correspoinding signature sheets, and would note the amount in his
individual cash receipt book. On 'special events', however-- that is, when
visiting groups such as the Junior Naval Cadets ate in the mess hall-- the cash
and accompanying signature sheets would be turned over to defendant in a
separate envelope, and, at defendant's direction, the amount would not be

entered in the cashier's book. The various cashiers all testified to specific
instances of delivering cash from special events to the defendant in this way.
An audit of the disbursing officer's records, based on adequate explanatory
testimony, established that-- with one exception2 -- the special events money
was never turned over to the disbursing officer.
3

This evidence amply supports a conclusion that the defendant received money
belonging to the United States and deliberately retained it for his own use.
Defendant's argument that it is insufficient amounts to an assertion that he
cannot be convicted of embezzlement without eyewitness testimony that he
physically pocketed the missing funds. Such a contention is wholly wihout
merit.

The case of Shaw v. United States, 357 F.2d 949 (Ct.Cl.1966), relied on by
defendant, furnishes no support for his position. In that case-- a suit for back
pay by a discharged Navy officer-- the plaintiff had been convicted by
courtmartial of embezzlement solely on the basis of a discrepancy in his
accounts despite a specific finding that he had not converted the money and had
not been negligent or culpably inefficient in handling it. The United States
resisted on the gound that the charge was 'statutory embezzlement, which
requires no proof of criminal intent'. 357 F.2d at 955. Moreover, the burden had
been placed on the plaintiff (i.e., the court-martial defendant) not only to show
that he was not at fault, but also affirmatively to explain the discrepancy.
Neither factor is even remotely present in this case. The only burden to explain
imposed on the defendant here was that inherent in the natural implications of
the government's evidence. That an inference of guilt can be buttressed on
circumstantial evidence of this nature is clear. To hold otherwise would impose
an unrealistic burden on the prosecution, which fairness to the defendant does
not require. Cf. Morrison v. People of State of California, 291 U.S. 82, 88-89,
54 S.Ct. 281, 78 L.Ed. 664 (1934).

Defendant's argument that the indictment under section 641 fails to recite
felonious intent as an element of the offense is equally without merit. The
words 'wilfully and knowingly' amply convey the necessary element of mens
rea. Colella v. United States, 360 F.2d 792, 798 (1st Cir.), cert. denied, 385
U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). Morissette v. United States, 342
U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), relied on by defendant, held only
that, because section 641 required proof of felonious intent, it was error for the
trial court to exclude a defense of innocent mistake. The indictment in that case,
like the one here Adequately charged the crime in the statutory terms. Here
there was sufficient evidence for the jury to find criminal intent, and the trial
court's instruction on the meaning of 'wilfully and knowingly'3 fully covered

the point.
6

The defendant further contends that certain opinion testimony given by a

government witness about the amount of money missing was improperly
admitted hearsay. No objection was made to the testimony, on direct
examination, that the audit of the witness revealed 'approximately $970' of
missing funds. On cross-examination the witness was able to show how he
arrived at the precise figure of $986.91, basing his calculations not on estimates
made during his investigation but on specific testimony of prior witnesses
during trial. The court, in denying defendant's motion to strike, properly
cautioned the jury that if it found the prior witnesses unworthy of belief, the
testimony of the government witness should be rejected. There was no error in
accepting the testimony in this manner. Cf. Siravo v. United States, 377 F.2d
469 (1st Cir., May 15, 1967).

The defendant also argues that evidence of certain other acts should not have
been admitted. An FBI investigator testified that defendant admitted
withdrawing $10 from cash together with a signature sheet covering the cash on
two occasions, in order to purchase charcoal without going through the usual
requisitioning procedure. There was no objection to this testimony, which in
any event appears admissible to show availability and knowledge of the
suspected method of concealing misappropriation.

Proper objection was made, however, to estimony that defendant on one

occasion told a storeroom custodian to put some vinegar, which was to be
transferred to another department, in his car. This language of the defendant,
according to the witness, was: '* * * put it in the trunk of my automobile, my
personal vehicle. I will take it to the warehouse.' Defendant's counsel
immediately moved to strike this answer and the court promptly responded: 'It
certainly is. It may be stricken. The jury will disregard it entirely. Let's confine
ourselves to this case.' Subsequently defendant's counsel moved for a mistrial
and the court denied the motion. This happened on the third day of the trial,
which required nine days and ended thirteen days later. The court included in its
charge a direction that the jury disregard any answers stricken. There was no
request for any additional charge and no objections were registered.

After considering the case as a whole and the nature of the offending answer,
our 'conviction is sure that the error did not influence the jury, or had but very
slight effect'. Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239,
1248, 90 L.Ed. 1557 (1946).
Finally, the court did not err in allowing the bill of particulars to be amended

10

Finally, the court did not err in allowing the bill of particulars to be amended
during trial so that the time of defendant's alleged conversion was alleged to be
'between the approximate dates of Ausust 22, 1965, to August 29, 1965, and the
approximate dates of October 1, 1965, to October 12, 1965.' The court had
earlier announced, in granting the defendant's motion for a bill of particulars, 'I
am disposed to grant the motion to the extent the Government will specify the
approximate dates * * *.' There was no surprise and no significant variance
between the proof and the dates originally alleged. The action of the court was
well within the discretion allowed by Fed.R.Crim.P. 7(f). Nor was there error in
the court's permitting the government to reopen the redirect examination of one
of the witnesses.

11

Affirmed.

A second count laid the same charge under 18 U.S.C. 654. Section 641
punishes embezzlement of government property by anyone; section 654,
embezzlement of anyone's property by a government officer. But the reviser's
note to section 654 indicates that all embezzlement of government property was
intended to be covered by section 641, section 654 being limited to
embezzlement of non-government property. The second count was properly
dismissed at trial

The exception was a check for $105.73 given by the Junior Naval Cadets when
they ran out of cash at the end of a week's visit. From the fact that the check
was transmitted properly while cash received under identical circumstances was
not, the jury might validly have inferred that the discrepancy was not accidental

'I also instruct you that an act is done wilfully if it is done voluntarily and
intentionally, with the specific intent to do something which the law forbids;
that is to say, with a bad purpose either to disobey or disregard the law. And an
act is done knowingly if it is done voluntarily and intentionally and not because
of mistake or accident or other innocent reason.'
Defendant now challenges the sufficiency of this instruction, but he failed to
raise this challenge at trial, at the only appropriate time. Fed.R.Crim.P. 30.